OPINION:
Restore Roe! This is the rallying cry throughout the country as we head into the midterm elections.
President Biden promised recently that if the Democrats maintain control of Congress in the mid-terms, the first thing he would do is “sign a law codifying Roe in January.” Last term, the House passed the Women’s Health Protection Act, a bill they claimed codified Roe, but it fell short of the votes necessary to survive a filibuster in the Senate.
In Michigan, Gov. Gretchen Whitmer said, “Prop 3 is absolutely necessary to preserve the rights we’ve had for 49 years under Roe v. Wade,” claiming that the proposed constitutional amendment would not jeopardize existing parental consent laws. And, in California, Planned Parenthood advocates are using #RoetheVote as their call to action in support of the state’s Constitutional Right to Reproductive Freedom Initiative.
But none of these proposed laws would merely “restore Roe.”
All three laws go far beyond Roe and its successor case, Casey, which permitted states to regulate abortion in limited ways before viability. After viability, states could even prohibit abortion (subject to some exceptions). There is no such freedom under the proposed laws. None of the laws permit states to regulate abortion to protect minors. None of the laws permit states to ensure parents can be involved in their young daughter’s decisions. None of the laws permit states to give meaningful protections to the unborn child as the pregnancy progresses, even after viability.
While these laws go far beyond Roe, supporters seek to cast them as “restoring Roe” to take advantage of the fact that many Americans state they support Roe. The irony is that most Americans don’t actually support what Roe permitted. Most Americans want restrictions on abortion, and support for legalized abortion drops dramatically the farther along the baby develops. Only 36% of Americans support second-trimester abortions, and only 20% support third-trimester abortions.
In contrast, the legal regime established by Roe, and affirmed in Casey, permitted states to allow abortion until birth for any reason. While the two decisions set up frameworks (“trimester” and “viability”) under which states could regulate abortion in limited ways, neither decision required states to do so.
And, when states did act to regulate abortion, many laws were invalidated that the majority of Americans support, such as health and safety clinic regulations, parental notice or consent laws, and 24-hour waiting periods. Although Casey gave states greater freedom than Roe, it still constrained them from being responsive to advances in medicine, to a greater understanding of the biological realities about the unborn person, and to pressing concerns for women’s health and safety posed by abortion practices.
The reality was that the Roe/Casey regime did not allow Americans’ genuine policy preferences to be embodied in law. Dobbs was meant to change this by removing the constitutional constraints on states to allow laws to reflect more accurately Americans’ views on abortion policy.
But if passed, the laws on the table will usher in a far more radical abortion regime than has ever existed in this country. And they will do so in a way that will once again prevent Americans from working together through the democratic process. Ballot initiatives like those in Michigan and California would enshrine abortion rights in the state constitutions, trumping all existing state laws to the contrary and governing the interpretation of state law. A federal bill, like the one President Biden has promised, would have a sweeping nationwide effect, immediately taking precedence over all state and local abortion restrictions.
Our lawmakers should speak plainly to the American people about the abortion policy they support. Euphemisms like “restore Roe” take advantage of the rampant distortions about complicated abortion laws that abound in this country. If proponents of abortion-permissive laws want unrestricted abortion throughout pregnancy, even of healthy viable infants, they should say so and make their case.
Americans are not served by misleading public discourse. In the wake of Dobbs, Americans have the opportunity to have a serious conversation about abortion and to address the factors that cause women and men to think it is their only or best option. That conversation will not happen without truthful information about what is at stake.
• Elizabeth Kirk, J.D. directs the Center for Law & the Human Person at the Catholic University of America Columbus School of Law. She also serves as an associate scholar at the Charlotte Lozier Institute and is a fellow at the Institute for Human Ecology.
Please read our comment policy before commenting.